Raise the Hammer

Court Decision on Website Comments Threatens Privacy

This is a case to watch if you run - or comment on - a website in Canada.

Richard Warman is a Canadian human rights lawyer and activist who aggressively uses Human Rights Tribunals and anti-defamation lawsuits to make life difficult for people who exercise and promote hate speech.

This makes him deeply unpopular with white supremacists, neo-nazis, and libertarians alike, who, as I'm sure you can imagine, have some choice words to write about him on websites and online forums.

His latest target is FreeDominion.ca, which is sort of a Canadian version of the infamous FreeRepublic.com and populated mainly by conservatives, market libertarians, and Western alienationists.

Justice Stanley Kershman, the Ontario Superior Court judge hearing the case, has ruled that the site owners must disclose all the personal information they have on the eight pseudonymous users, including their email and IP addresses, on the grounds that the right to privacy does not shield a person from criminal or civil liability; and that in any case, there is "no reasonable expectation of privacy" for generally public information like someone's name and address.

Bizarre Reasoning

The latter reasoning seems bizarre. The judge quotes Justice Leitch in R v. Wilson (2 February 2008), who wrote, "One's name and address ... is information available to anyone in a public directory and it does not reveal, to use the words of Sopinka J in Plant, "intimate details of the lifestyle and personal choices of decisions of the applicant."

However, when that name and address is connected to comments made when the person assumed they were commenting in privacy, it certainly can reveal the person's "intimate details of the lifestyle and personal choices of decisions".

Finally, it's important to note that the website owners were ordered to disclose the identities of people who are being sued for defamation, not people who have already been sued successfully. It has yet to be determined whether the comments in question are actually defamatory.

What is to stop unscrupulous someone from launching a spurious lawsuit simply to expose the identities of people who left pseudonymous comments on a website?

Dangerous Precedent

Now, I Am Not A Lawyer (IANAL), but I am concerned about the low threshold this case sets for infringing on privacy (in Canada, privacy rights are not absolute but are balanced against legal liability and the public interest).

It seems to me that if this decision stands and becomes a precedent, it will produce two outcomes that both run counter to the public interest:

1. It may encourage website operators to make a point of collecting as little information as possible about their users. What this will accomplish, mainly, is to prevent the identification of pseudonymous commenters in cases where the public interest really does trump privacy rights - e.g. in criminal matters rather than civil defamation suits. (It will be interesting to see whether any politician tries to introduce a bill to require website owners to collect this information.)

2. Alternately, it may cast a chill over pseudonymous online discussion, discouraging many authentically valuable and provocative comments as well as comments that may legitimately be regarded as defamatory.

Free Speech and Information Privacy at RTH

Incidentally, Raise the Hammer has a pretty open commenting policy (so far, aside from accidental data loss, we have only ever deleted comments for being spam) and have never collected much information on site users.

We don't track the IP address when people leave comments, and you don't even need to register with the site to leave a comment - though registered users have more permissions, like the ability to include hyperlinks in comments.

The purpose of requiring a valid email with registration is not to link a username to an identity but merely to prove that the entity trying to register is an actual human rather than a spambot. It is, of course, trivially easy to set up a throwaway email address for this purpose that cannot be easily connected to personal identity.

In addition, once you have successfully set up an account, you can always use the Manage Profile page to change or even remove your email. We do not store previous versions of user profiles in our database.

Ryan McGreal, the editor of Raise the Hammer, lives in Hamilton with his family and works as a programmer, writer and consultant. Ryan volunteers with Hamilton Light Rail, a citizen group dedicated to bringing light rail transit to Hamilton. Ryan writes a city affairs column in Hamilton Magazine, and several of his articles have been published in the Hamilton Spectator. He also maintains a personal website, has been known to share passing thoughts on Twitter and Facebook, and posts the occasional cat photo on Instagram.

15 Comments

Read Comments

[ - ]

By IAANAL (anonymous) | Posted March 26, 2009 at 08:13:44

It's tricky. On the one hand, it seems premature to 'out' the identities of people on an online forum before the court has actually established that defamation has taken place. On the other hand, if someone is being sued for defamation, that person has a right to make a defence in court ... and you can't make a defence if you haven't been called in as a defendant. Granted, I Am Also Not A Lawyer (IAANAL) so I don't know how the rules work for a John Doe defendent in a civil suit.

So now internet users need to spoof their IP addresses for more than just watching last night's episode of Lost on Hulu. Once again people who really don't understand the internet and new technologies are the ones making laws to regulate them. This Justice genuinely doesn't see a difference between a dynamic IP address stamp on a message board posting and something static, like signing my name on a form. Also, I would be shocked if he had considered any of the points Ryan made, not because he's some evil Big Brother type trying to trample on free expression, but because of simple ignorance of how easy it would be to spoof IPs and use disposable email address. Activists living in countries like China and Iran have to use these tools all the time, I would hope that I never have to start using them just to protect myself from people who disagree with me and who sue just to find out my real name.

Also thanks Ryan for clarifying this site's policies on data gathering and privacy, I'd register if only I could think of a screen name with less than 12 characters.

I'd like to see this Judge navigate his way to the website in question. I wonder if he can. He's probably never posted a comment online and never read them either. I agree with Urban Renaissance...simple ignorance is one of, if not THE problem here.

I am sure I have never posted anything very controversial but I use proxies like Tor Park. Today I am using 'anonymouse'. Tomorrow, who knows? This is the future of the web; people submerging into an underworld, if you will.

I have several reasons for doing this. Firstly, we live in a Google world. When I do business with a new account I assume they will Google me, and they often do. For example, a couple of years ago I went to a meeting that would involve serious security concerns. When I sat down to meet the people of this office they knew all about me. In my case, that was fine. However, if they had known about my defense of Free Dominion and my very harsh words about communism I may have been thought of as controversial. It may not have caused real alarm but you never know. Or maybe that I supported Harper in his first run as Prime Minister could raise certain eyebrows. Or maybe I told some off colour joke, and so on.

Next reason, guilt by association. As I like to point out, people do not always 'read' the net, they 'scan' it. I have personally found that with so many discussions and different posters I sometimes confuse who said what or I misunderstand their point. A casual observer who happens to read these exchanges can understandably make the same error, especially if they are in a hurry doing a quick background check. Compounding that would be someone who wants to find some dirt because they prefer another person be awarded a contract. There is and always has been nepotism and back room deals in the business world. If I made a foolish mistake by posting something while I have been drinking (which I have done) should my team suffer the loss of an important contract for that? Should I be denied an opportunity because the client is a Liberal and ‘hates’ Conservatives. I was called a Nazi when I openly supported Mike Harris, and worse. Denying people the right to be anonymous is akin to denying a private vote. If I knew my vote would be made public I simply would not vote. If I have to choose between casting one vote of millions and be smeared with labels like “extreme right wing” or obtaining more business, it’s a no-brainer – being on the street won’t help anyone, least of all me.

Here is another example that I think really gets to what is actually going here. I happen to know a good deal about the history of the ARA in Toronto. The ARA has a very ugly and violent past. I feel it’s important to share that information, but should I jeopardize my safety, or the safety of my family by exposing them? These are people who wear masks in their public activities and are known for hacking computers and spreading black propaganda about their perceived enemies. They are also allies of people like Richard Warman, who gave them the now infamous “maximum disruption” speech.

Until I know who the good guys are and who the real bad guys are, I will remain anonymous and continue to use proxies or I will say nothing out of fear. I think shutting people up is what this about. The anti free speech crowd will likely say “so what, shut your piehole. No one cares what you say". Maybe they are right. I choose to believe otherwise. And they can go F themselves if they don’t like it.

I've been following Warman's "pursits" through the Canadian Association for Free Expression (CAFE) for some time now. Certainly boils my blood nearly every time, and it's pretty hypocritical that he has his ARA lackies to do his bidding outside of the court.

The problem with comboxes and chatrooms is that as the conversation progresses and posters get to know each other as their online identities, the illusion is created that they are simply in someone's livingroom, or maybe at a restaurant table hashing out an issue or even egaging in heated argument. In these circumstances (certainly often fueled by a little wine) people may say all kinds of things impulsively which they would never dream of saying if they were at a podium giving a public address or even writing a letter to the editor-- not out and out defamation, racism etc. but things that are ill-considered or maybe a little over the top. Even Obama made that mistake when he sat on Jay Leno's couch (perhaps he mistook it for Jay Leno's actual couch?) and made his Special Olympics crack, which, theoretically, if it was made by a Canadian in Canada would be prosecutable by the HRC.

We either have to decide these conversations are for all intents and purposes private ones (even though they can be read by anyone) or we have to always treat anything we do online as a public act. For the time being, I always caution my kids that absolutely nothing they do online is private, not even their emails or chats-- even if you use a proxy, the company that sets up the proxy has your original IP, do they not?

I would like to comment on taser cops from Van. Airport. I am 54 years tough. I would like to challenge them to a sanctioned, in the ring boxing match. Imagine. I have erased most of what I just wrote, 'cause I don't trust the rcmp.

By concerned about free speech (anonymous) | Posted March 30, 2009 at 19:09:04

Freedominion hosts their domain in Panama (and are quite open about it) due to the problems they have encountered with the CHRC. I refuse to comment anymore on this story as if I am too critical, they might force you to give an IP, in order to sue me.